law - criminal and civil Flashcards
what is law
Law: a set of rules and principles
3 basic functions of Law
• Regulates activities of people
• Maintains order by prescribing punishment if laws are breached.
• Provides enforceable solutions to problems
Law is both:
Prescriptive- it tells people what they must do or not do,
Punitive-it provides for punishment of people who disobey laws.
2 sources of law
- Legislation
– Primary legislation (Statutes, Acts of Parliament)
– Secondary legislation (Regulations & By-Laws) - Case Law
– Also referred to as Common Law (or judge made)
– Individual decisions made by judges (judicial decision makers) in Courts
of Law & other legal hearings
- Legislation (Statute Law/Act)
The Commonwealth parliament and the various state parliaments are empowered to pass
laws. This is called statute, act or legislation. It is the main source of law.
• Generally judges cannot overrule an Act
- Common Law – Judge made law
Doctrine of precedent (prior judgements).
Common law is developed in the courts and continues to evolve. It is a collection
of judgements and court procedures based on previous cases and decisions
made. Judges are bound by a strong tradition to decide each similar case along
the lines of earlier decisions made.
define Plaintiff or claimant
• The party that initiates a lawsuit (action) against another in a civil action
define Defendant
Any party that a legal action is brought against (being sued) in a civil case
• the person accused of the crime in a criminal case
define Expert Witness
A person who has special knowledge in a particular field more than the average
person
types of law
Law can be classified as either Criminal law or Civil law
• Contract law (wills, power of attorney)
• Industrial law (workplace)
• Constitutional law
• Tort law (negligence, defamation, or false imprisonment).
CRIMINAL LAW
- Action is initiated by police or public prosecutor against a defendant who has allegedly committed a crime
- Purpose is to punish wrongdoers with jail, fine or community service
- The defendant must be proven guilty beyond reasonable doubt
When criminal law is broken it is
called a crime. Criminal offences are divided into two main classes:
1. Indictable offences (serious crimes heard by a judge and jury)
2. Summary offences (minor crimes heard in the magistrates court e.g.
traffic offences, shoplifting, minor assault)
CIVIL LAW
• Action involves one party (e.g. Patient) bringing action against another
(e.g. Nurse) It is concerned with property & personal legal disputes between
people and/or organisations.
• Purpose is monetary compensation for personal or property loss or damage
• The defendant must be proven guilty on the balance of probabilities
The majority of civil law falls under common law. There are many divisions (E.g.
Family Law, Industrial Law, Workers Compensation & common law division
(contract law, negligence, defamation & nuisance)
what is tort law (3 egs)
A tort is a civil wrong against a person or property, either intentionally
or unintentionally. Therefore it generally falls under Civil Law.
The most important torts involving nurses are negligence and trespass to
the person. This relates to consent.
E.g.
• Defamation
• Trespass to the person (Assault, Battery, False Imprisonment)
• Negligence
Tort Law 1. Defamation
Injuring or damaging the reputation or character of a person by making statements
to a third person.
Two types
• Libel - (permanent such as written publications, DVDs, film, medical records, pictures)
Nurses have written in the Progress Notes that she is “childish, stupid, and as stubborn as a pig”
The nurses have defamed her by writing this.
• Slander - (non-permanent such as speech or actions) e.g. verbally commenting about an
individual in such a way that his or her reputation may be harmed
Tort Law 2. Trespass to the person
Every individual is entitled to be free from unlawful interference
with their body and the law protects this right in a number of ways.
Nurses are involved in many procedures that could be interpreted
as an interference with the person and offensive to a reasonable
sense of honour and dignity.
Battery (assault tort law)
The criminal offence of assault generally includes both the threatened and the actual
application of force to a person without their consent. It includes the actual intent
to cause harm, or a very high degree of reckless indifference to the probability of
harm. This is known as Battery.
types of restraint
Physical - leather or cloth wrist and ankle restraints, full-sheet restraints, soft belts or vests, hand mitts, crotch/pelvic ties, suit/ harnesses, wheelchair safety bars, gerichairs and overchair tables.
• Chemical - Chemical restraint involves medications. E.g. antipsychotics, antidepressants, beta-blockers
• Environmental - Locked in a room
• Psychological - Threatening a patient so they believe
that the they will suffer an adverse consequence if he
or she moves
